Bella Vista learnings

Bella Vista learnings

Tuesday 24 July, 2018

The Hon Paul Heath QC’s review of Tauranga City Council’s (TCC) assessments, decisions and monitoring of the land use, subdivision and building consents for 21 properties in the Bella Vista subdivision is essential reading for any council officer working with the Resource Management Act 1991 (RMA) and the Building Act 2004 (BA).

The following are some of the key observations and conclusions reported by Heath QC. You can view a copy of the full report below:

The Terms of Reference directed Heath QC to respond to two questions relating to the Bella Vista RMA processes:

Did TCC adequately process the land use and subdivision consents?

Did TCC adequately monitor compliance with these consents?

The Bella Vista resource consent applications, prepared by professional planning and engineering consultants, addressed geotechnical issues by relying on an earlier, but comparatively recent, geotechnical report prepared for the wider “The Lakes” subdivision of which the Bella Vista subdivision was a part. The applicant stated that the geotechnical conditions assessed in the earlier geotechnical report would not be changed by the later Bella Vista proposal. Heath QC concluded that TCC was entitled to rely on these representations made in the applications and TCC did so by imposing a subdivision consent condition requiring that the Bella Vista lots be developed in accordance with the earlier, wider geotechnical report. This condition required the registration of consent notices on the titles of the new Bella Vista lots recording reliance on that geotechnical report.

When Bella Vista applied to TCC for its s224(c) certificates, it advised TCC that the subdivision had proceeded in accordance with the original resource consent applications and that all servicing had been carried out in accordance with TCC’s Infrastructure Development Code. Heath QC noted that TCC had relied and acted on Bella Vista’s representations and accordingly did not seek any further information before issuing certificates under s224(c) of the RMA.

Acknowledging the constraints of his Terms of Reference, Heath QC was not prepared to find that TCC had failed to process the RCAs adequately. He did, however, state that in his opinion it would have been prudent for TCC to request further information from Bella Vista given the applicant’s reliance on an earlier geotechnical report relating to a broader area of land in The Lakes subdivision, rather than a more specific focus on the 21 lots of the smaller Bella Vista subdivision.

Heath QC observed that while the issue of 224(c) certificates completed the subdivision process from TCC’s perspective, TCC continued to be subject to a statutory duty to monitor compliance with the consent notices registered on the titles of the new lots.

Heath QC’s investigation found that earthworks undertaken in the Bella Vista subdivision exceeded the Permitted Activity Rule criteria in Rule 4C.2.2 of the District Plan particularly those criteria requiring retaining structures. Heath QC concluded that TCC should have issued abatement notices to require the District Plan breaches to be rectified.

Noting that geotechnical issues fall within the scope of TCC’s functions under both the RMA and the BA, Heath QC noted at paragraph 210 of his report “a potential problem involving the need for good communication between those parts of the Council that undertake [RMA] and [BA] functions…”. He concluded at paragraph 217 that “the [Bella Vista retaining] problem was capable of being resolved through the abatement notice procedure [due to the lack of retaining breaching the District Plan’s earthworks rule]. But, in another case, the …. earthworks being undertaken may not have breached the terms of the [district plan], leaving only the Building Act as a means of addressing the safety concerns [caused by the absence of retaining]. In that situation, the notice to fix procedure [under the BA] appears to be the only mechanism by which that could be done.”

Building consents/certification

Heath QC’s review of TCC’s involvement in the Bella Vista subdivision also provides general guidance for local authorities on proper process under the BA for consents and certification, particularly in regard to earthwork and geotechnical issues. Some of the key observations and conclusions applicable for all councils operating under the BA are listed below, with the emphasis being on the need for communication between different regulatory arms within council to ensure that relevant information is shared.

Consents should only be granted based on sufficiently robust plans and specifications. When considering whether to grant building consent applications, councils must consider the extent of earthworks required to enable buildings to be built in accordance with the building code.

When councils are on notice about geotechnical issues, they are required to ensure that there is sufficient information to be satisfied on reasonable grounds that the building work required to erect buildings and /or retaining walls can be undertaken in a manner that enables all building work to comply the Building Code.

In making determinations, inspectors are entitled to rely upon producer statements from accredited persons to confirm that completed work, not visible to an inspector at the time of his or her visit, has been undertaken in accordance with the Building Code.

Councils may be liable for geotechnical and structural issues that could have been identified by a prudent inspector during the inspection process.

While on a literal interpretation of the legislation, notices to fix during a consent process do not apply to the sequencing of works, it is likely that the courts will interpret the power to issue a notice to fix in a manner that would best meet the purposes of the BA.